Alexandros Chatzinerantzis, national Practice Head of the German Dispute Resolution Team at Linklaters, explains the background to the constitutional complaints against the Act, the decision and its implications.
In a landmark decision, the Federal Constitutional Court ruled that the provisions of the German Climate Change Act of 12 December 2019 (Klimaschutzgesetz) are incompatible with fundamental rights insofar as they lack sufficient requirements for further emission reductions from 2031 onwards. This is in line with a general trend – climate change-related litigation is on the rise.
Background of the constitutional complaints
The constitutional complaints raised the question whether the provisions of the Federal Climate Change Act are sufficient to limit the effects of global climate change in the future.
In implementation of the obligations under the Paris Agreement, the Act aims to limit the increase in the average global temperature to 1.5 °C above pre-industrial levels. In addition, the Act represents a commitment by the Federal Republic of Germany to pursue greenhouse gas neutrality by 2050 as a long-term goal.
For this purpose, the Federal Climate Change Act includes the obligation to reduce greenhouse gas emissions until 2030 by 55% compared to 1990 level and sets out the annual allowable emission amounts for various sectors in line with the reduction quota for the target year 2030. The Act does not include any provisions applicable beyond 2030. Rather, the Federal Government must in 2025 set annually decreasing emission amounts for the period after 2030 by means of ordinances.
In the complainants’ opinion, these regulations are not sufficient to reduce greenhouse gases in a timely manner and the ‘CO2 budget’ corresponding to the temperature threshold of 1.5 °C cannot be met. They claim that by failing to implement a stricter reduction strategy, the state had violated its duty of protection under Article 2 para. 2 sentence 1 and Article 14 para. 1 of the Basic Law (Grundgesetz – ‘GG’). In addition, the fundamental rights to a future in human dignity and to an ecological minimum standard of living, which the complainants derive from Article 2 para. 1 GG in conjunction with Article 20a GG and from Article 2 para. 1 GG in conjunction with Article 1 para. 1 sentence 1 GG, had been violated pursuant to the complaints. Finally, in the complainants’ opinion, the Federal Climate Change Act violates their fundamental freedoms, since from 2030 onwards, the implementation of the emission reduction obligations will require an “emergency stop”, which entails unacceptable restrictions of fundamental rights.
Overview of the decision
The Constitutional Court rejected a violation of the state’s duties of protection under Article 2 para. 2 sentence 1 GG as well as Article 14 para. 1 GG given the leeway afforded to the legislator in this respect. In particular, the concept implemented with the Federal Climate Change Act is not obviously unsuitable to achieve the goal of climate neutrality according to the decision.
However, the court held that fundamental rights are violated because the emission quantities permitted until the year 2030 considerably reduce the options for reducing emissions after that date, thereby endangering practically all freedom protected by fundamental rights.
According to the decision, the complainants are protected by Article 20a GG against such a threat by unilaterally shifting the burden of reducing greenhouse gas emissions into the future. The Constitutional Court held that this resulted, in particular, from the fact that, according to the current state of affairs, CO2 emissions contribute to global warming in a largely irreversible manner. Accordingly, the legislator may not allow climate change to progress ad infinitum without taking action, but must take precautionary measures to ensure a transition to climate neutrality in accordance with fundamental rights.
In the opinion of the constitutional judges, all regulations that now allow CO2 emissions constitute an irreversible legal threat, because every quantity of CO2 emission that is allowed today reduces the reduction options in the future. Correspondingly, a CO2-relevant exercise of freedom will be subject to ever stronger restrictions in the future. In this respect, an extensive exhaustion of the CO2 budget already by 2030 would increase the risk of serious losses of freedom in the future, because there would be a shorter timeframe for the technological and social developments required to enable today’s still heavily CO2-oriented lifestyle to make the transition to climate-neutral behaviour in a way that respects fundamental rights.
Against this background, the Constitutional Court held that the Climate Change Act does not satisfy the requirement of proportionality to distribute the reductions of CO2 emissions over time in a way that preserves fundamental rights. The court noticed that the legislator cannot be required to precisely determine the decreasing emission quantities from the present time until the achievement of climate neutrality targeted for 2050. Yet, according to the court it is not sufficient to merely oblige the Federal Government to make a further determination once – in 2025 – by means of an ordinance. Rather, it must at least be defined at what intervals further stipulations are to be made transparently.
The Constitutional Court has set the legislator a deadline of 31 December 2022 for an update of the reduction targets for greenhouse gas emissions for periods after 2030. The Federal Environment Minister announced that she will present key elements for an updated Climate Change Act before the end of the summer to create long-term planning certainty.
This commentary was co-authored by Linklaters colleagues Mirjam Erb (Managing Associate – Dispute Resolution, Frankfurt) and Tosca Hohm (Associate – Dispute Resolution, Frankfurt).